Read the full judgment text of FACC 11/2017 on BabelCite. This Court of Final Appeal judgment was delivered on 9 May 2018 before 馬道立, 李義, 鄧國楨, 霍兆剛, 郝廉思勳爵.
Criminal law – indecent assault – statutory interpretation – mental element – absolute liability – honest and reasonable belief – presumption of mens rea – intermediate bases of liability – reverse burden of proof – certification of points of law. The appellant, a 22-year-old university student, met a 13-year-old girl (PW1) through an adult website on which she had advertised herself as 17, and engaged in sexual activity with her in a hotel room. The appellant was charged with indecent assault contrary to section 122(1) of the Crimes Ordinance (Cap 200), read with section 122(2), which deems persons under 16 incapable in law of consenting so as to prevent an act from constituting an assault under the section. The magistrate acquitted the appellant, finding that his defence of an honest and reasonable belief that PW1 was 16 or above had not been rebutted. The prosecution appealed by way of case stated, and the Court of First Instance allowed the appeal, holding the offence to be one of absolute liability. On further appeal, the Court of Final Appeal granted leave on three certified questions of law. The Court re-affirmed the framework of the presumption of mens rea and the five Kulemesin scenarios for statutory offences, and held that the offence under section 122(2) is not one of absolute liability. The Court distinguished HKSAR v So Wai Lun, noting that section 124, unlike section 122, had a legislative history in which an express defence of reasonable belief was introduced and later expressly removed, and that the extension of absolute liability to the section 123 offence carrying life imprisonment was troubling. The Court further held that the existence of express defences in sections 122(3) and (4) did not displace the presumption as to other defendants (rejecting the Kulemesin fourth scenario), because section 122 was enacted as a composite provision with mixed ancestry. Applying the Kulemesin framework, the Court concluded that the presumption of mens rea as to the victim's age was displaced, and that the proper construction was the third Kulemesin scenario, under which the defendant bears the persuasive burden, on a balance of probabilities, of proving that he honestly and reasonably believed the victim was 16 or above. The Court held that this reverse persuasive burden satisfied the proportionality and rationality tests, as it was rationally connected to the legitimate aim of protecting under-16s from sexual exploitation and did not impose an unduly onerous burden in the context of a fair trial. On the assumed findings of the magistrate, the third Kulemesin scenario was satisfied and the acquittal was restored. The Court answered the three certified questions in the negative: (i) the offence is not one of absolute liability; (ii) actual consent is irrelevant, but the defendant may defend on the basis of an honest and reasonable belief in the victim's age; (iii) the prosecution does not bear the burden of disproving such belief, as the defendant bears the persuasive burden. Costs, including legal aid contributions, were granted to the appellant.
Legal issues: Whether ss.122(1) and 122(2) of the Crimes Ordinance (Cap 200) together create an absolute liability offence when the victim is under 16 · Whether an honest and reasonable belief that the victim was 16 or above is available as a defence · Whether the prosecution must disprove honest belief in the victim's age being 16 or above
Outcome: Appeal allowed. The decision of the Court of First Instance was set aside, the appellant's acquittal was restored, and costs including legal aid contributions were granted to the appellant.
Cited by 43 cases · Cites 1 case